There’s no business like law business
There’s no business I know.
Everyone involved in it’s appealing
From every stupid order down
below
There’s always some moronic client squealing
And some lawyer stealing
Another’s dough
(apologies to Ethel Merman)
All litigation arises out of an event. Some of these events are sublime. Most are ridiculous.
Look on the internet long enough an d you will come across “The Stella Awards”. These awards are the flip side of my favorites—The Darwin Awards—because they do not celebrate the deaths of the materially stupid. No, the Stellas celebrate the triumph of the stupid over their own stupidity and proving that these stupid people are not the stupidest people around—no, that honor is left for the juries that have allowed the stupid people to recover for their own stupidity.
The Stella Awards are named for a woman named Stella Liebeck. Now, you have never heard of her but you have heard of her lawsuit. Try recalling McDonalds? Doesn’t work? How about adding in hot coffee? Some people are getting it. I can see it in your eyes. Now try adding in $2,900,000 because the coffee was hot and McDonalds did not tell Stella that the coffee was hot. You see, where Stella came from had to be Iceland, where coffee could never be as hot as it is in America because Iceland is a cold country. Its very name gives me a chill (Uh-oh, the guy next to me on the train is trying to tell me that Iceland is the nice country with green fields and a pretty decent climate and the Greenland is the country that is a barren wasteland of ice. He has got to be wrong. How could they improperly name these countries—unless lawyers were involved).
Anyway Stella was drinking her coffee one day and it spilled on her giving her a burn. A jury nodded their heads and agreed with Stella (actually, agreeing with her lawyers) that McDonalds had an affirmative obligation to warn that the coffee was hot which is why now if you look at the cups of coffee you get from any fast food place you will see a warning printed along the bottom that says “Caution: The Coffee You Are About To Drink Is Hot” I know that somewhere, someplace there is a plaintiff’s attorney that is dreaming up a breach of contract lawsuit from someone who did not get hot coffee as promised. (I will discuss this later in the section of this book entitled “Without Lawyers We would Not Have These Great Warnings).
I had a case once in which some woman claimed that a home electrolysis kit caused her to develop epileptic seizures. Terrible, to be sure, but after investigation, we had determined that the kit gave off about three volts of electricity, nowhere near the charge necessary to trigger an epileptic attack. It did not prevent the lawyer from wasting tons of his client’s valuable money in a lost cause.
Perhaps one of my favorite cases never went into suit but you could tell that the person made a claim in the hopes that enough noise would get her some do-[re-mi. This woman claimed that the tortfeasor (one who makes the torts feasible) sold her a $650 bottle of face cream that burned her face. A female investigator was dispatched to meet with the woman, who claimed all along that she had “a lawyer friend downtown” (she was obviously a Tennessee Williams fan) and that she was in no way no how going to accept a “nuisance” offer. The investigator’s report indicated that the woman was ugly and that this was a pre-existing condition that was not however exacerbated by the product.
Events come in all shapes and sizes. I have told you about a couple of small ones above. The lawsuit against Union Carbide for the toxic gas cloud It allegedly unleashed in Bhopal, India is, admittedly, a large one. The lawsuit brought by that firm that theta Brockovich woman was a part of was another big one. The bankruptcy filing by Worldcom is another large one.
What do all of these lawsuits, large and small, ridiculous and sublime have in common. They all keep lawyers in the money.
You see, we are a long way from the days of the medieval justice court in which Joe the blacksmith accused Artie the miller (not the playwright) of stealing sheep. In fact, there were no lawyers then. A bunch of smelly men stood around arguing before the wise man in the village and things were ironed out in record time whether or not justice was served. Today you here the phrase “miscarriage of justice” spoken all of the time. This is spoken usually when something goes against the way you want it [Notice the use of the personal pronoun—when one party feels there has been a miscarriage of justice the other party thinks things went A-OK]. In the old days, there was no miscarriage. Judge Wapner made his decision. If you stole sheep your hand was cut off and you required help opening your ketchup bottle. There were no rights of appeal. You took your punishment like a man.
Today, you go to court. The first thing you do is file a complaint. I am going to cut out the legalese here. Your complaint is your claim against the other party, whether it is a natural person or an unnatural corporation or person. You must specify what facts occurred [“I was changing a tire when the defendant’s car hit my fat ass.”] You must specify the causes of action. In a great majority of cases the prime cause of action is negligence or breach of contract. What is negligence? Think of negligence in simple terms. You ask your cousin Tony to install some drywall in your house. In doing so, he swings a 2x4 and hits into a window air conditioner causing it to fall out of the window and landing on your neighbor’s car. Sort of an unintended Rube Goldberg-esque situation. Negligence is not getting injured jumping in front of a moving car to get on the show Jackass. That is gross stupidity. If Tony repeatedly hits your neighbor with the 2x4 (probably because he owed him money, what else?) this would be considered intentional conduct.
Complaints can be either short or long or, in most cases, really really long. Automobile cases usually require a couple of pages, medical malpractice cases require more than that and business dispute complaints are even longer. Why? Because a recent study from the Frammis institute has concluded that the more words in a complaint, the better chance for recovery. This is because most people, lawyers included, would rather mortgage their houses to the hilt than read the complaint so they settle more quickly. I have often thought that we could cut down on in-house legal staffs if we just agree to a national standard of weights and measures. For every 1/10th of one ounce a complaint weights, plaintiff automatically receives X amount of dollars.
When drafting your complaint, you must also specify damages. Since we all know from the movie The Verdict that the amount sought in the complaint does not limit the damages awarded by the court you can put in any amount or just indicate that the amount is more than the “mini mum jurisdictional amount of the court”. This is fancy language for saying “hey judge, whatever the smallest amount you can award is, I want more.” It never hurts, though, to be absolutely sure. Some years ago at the height of Reagan inefficiency, I knew a joker who would list the damages sought as the amount of the national debt the morning he typed up the complaint. When I asked him why he did this, he always said “maybe I’ll get lucky”. You must ask for specific types of damages. Compensatory damages are those damages intended to make you whole for your loss. Items of these damages can include pain and suffering, lost wages, and special damages. To think of special damages, just think of items that you have paid for out of pocket at your lawyer’s suggestion, such as : cane, neck brace, walker, stripper (I mean masseuse), 372 chiropractic visits and a spinal tap. The other type of damages is called punitive damages. These are dam ages intended to deter the defendant from engaging in bad conduct in the future and the amounts of punitive damages can be m any, many multiples of compensatory damages. I have often thought that the punitive aspect should not be monetary in nature, but should be something for which all can benefit. An example that comes to mind is to have the bad guys sat upon b y a very large sweaty Lithuanian wrestler.
You must use fancy language in your complaint. We have spoken about Latin before. Other ways to confuse and confound your adversary are to use phrases such as “on or about” as in “on or about March 23rd, defendant’s car hit my fat ass.” It would seem to me that if someone’s car hit my fat ass I would know specifically what day to plead in the complaint. But lawyers are afraid to be exact, since with exactitude there is no room for wiggling. Also, fancy language ensures that you throw in the most tortured narrative you can put together and state that this bad conduct caused “ennui.” (Yes, I know, I had to look it up too).
There is one exception to the fancy language rule: the prisoner pro se case. Pro Se is another Latin term. It means “complete disregard of Shakespeare’s advice.” It is the quintessential “do it yourself” kit for lawsuits. However, pro se, when modified by the word prisoner, completely changes the meaning to “I got nothing better to do with my time so I am gonna sue your stupid motherf****** ass”. In both prisoner and non-prisoner pro se cases, there are no lawyers. So maybe the prisoners are onto something. Nevertheless, I am always amazed at the defense put on by real lawyers when they come up against pro se litigants. “This guy has made some arguments that are appealing to the judge,” they always say to me. To which I find myself responding, “Maybe I should hire them.” Instead of one lawyer on the defense side, there are multiple lawyers and never any junior attorneys and all of the senior attorneys bill anywhere from $175 per hour to $400 per hour. All of this to fight some guy sitting in an 8x8 jail cell laughing his ass off, preparing his next lawsuit, that to get Rice Krispies served at breakfast. Sometimes the prisoner pro se cases have merit. It is these cases that the ACLU gets involved with because they are also attorneys who have nothing better to do with their time. You know, fighting for important rights such as cable television, more exercise time in ‘the yard’ and such trivial matters as protection from cruel and inhuman punishment.
Enough diversion.
When your complaint is filed, the complaint must be answered in strong terms. Strong but legal. You cannot say “The Plaintiff is full of shit.” That is not legal like. Lawyers do not talk that way. No, you must say something like “the allegations in the complaint are denied”. Even better is the legal shorthand. Let’s say your complaint has 12 paragraphs six of which are denied. Some defense attorneys say “paragraphs 1,3,5,7 & 9 are admitted and paragraphs 2,4,6,8, &10 are denied.” But my favorite is what we call in New York “DKI”. This is the old denied upon knowledge and information. It is the weasel’s way of saying “I checked with my client and he does not want to check his records and he’s not sure but he knows you are full of shit so we are going to deny this.” Another neat lawyer trick.
So far so good. So far the process is going smoothly. It’s like third grade in Mrs. Greenbaum’s class when Andy Cheslow said I hit him and I denied it. Now let’s throw a monkey wrench into the proceedings. Mrs. Greenbaum is probably dead now but I am sure that her eyes would roll around in her head if I would have said “I am not going to deny what Andy just said. He does not even state a cause of action against me so I would like to make a motion to dismiss.” Huh?
What Andy meant was that there was no basis for me to make a claim against him. Similarly, in a lawsuit, this motion may be made especially when some rule, law, regulation speaks directly to the conduct at hand. In addition, there are many other motions that can be made instead of filing the answer, such as the motion for a more definite statement, the motion to strike the complaint, the motion to enlarge time to answer, and the exotic sounding demurrer. My favorite is the motion to have the plaintiff and defendant go at it in a Battle Royale. We could try to sell this little used one and go back to a frontier justice sort of mentality.
A word about motions: They are clearly tools invented by lawyers for lawyers. Judges do not read these things. They are stacks of papers, some nearly 50 pages in length that are so boring they make the Communist Manifesto seem like a John Grisham novel. The best thing to hear from a lawyer is “we have a great shot on this motion to dismiss.” Translated this means “I have found a new way to bill time on this file.” Run for the hills. Do not pass go, do not collect $200. Better yet, if you are the defendant, tell the lawyer that you will make him a deal. Tell him to bill his time for the motion to dismiss. Tell him you will pay him double if the motion is decided and the case is ended but tell him that you will pay nothing if the motion is denied. Why should we do this? Because when the motion is denied, the defense attorney’s response is always “damned judge wouldn’t know a precedent if it fell on him.”
Of course, motion practice can lead to problems as well—of course. One of the favorite outcomes of motions for judges is “Granted but plaintiff is given thirty days leave to amend his complaint”. What does this mean? It means that the plaintiff’s attorney was truly stupid because he did not plead the plaintiff’s case properly and the judge agreed with your argument that the attorney was stupid but with your funding (normally in the range of $20,000 to $700,000) your defense attorney has sent a signal to his adversary and the judge which says “make me look good in front of my client but I am telling you that you look stupid and here is where you look stupid so correct it and we can get on our merry way”. The judge who used to be part of the fraternity of lawyers understands this—especially since he was usually the plaintiff’s attorney getting his cases dismissed but being given leave to amend. So with nods and winks all around, the judge has granted the motion but there is time to correct the pleadings. Oh, we band of brothers.
The great thing about a motion to dismiss is it is invariably more expensive than a telephone call. Presumably, a motion requires many hours in the library to research arcane minutiae of the law. In larger firms, the so-called “white shoe” firms ( presumably because they wear white shoes with black socks) with several thousand lawyers apiece, several lawyers (usually associates) are tasked to research areas of the law in team fashion regardless of whether or not they have researched the exact issue before. Something could have changed since last week. A lawyer was sued for malpractice (justice?). His lawyer filed a motion to dismiss the case based upon the doctrine of ripeness. What the hell is that, you say? Very good, because when I was in law school, one page out of one thousand was dedicated to this rather arcane topic. It seems as though the case that the sued lawyer was handling was not yet over so in the defense lawyer’s mind the legal malpractice case was not ripe to be brought. Like a prematurely picked banana. He files this motion. It is GRANTED. The two lawyers do their little hora/tarantella and rejoice. Six months later, the underlying case is over in a manner not favorable to lawyer number 1 so lawyer number 2 is back in business.
One other thing about motions to dismiss. When they are filed, we lawyers do NOT refer to them as an MTD. A friend of mine graduated law school around the time that he saw A Few Good Men and there is a scene in which Tom Cruise (while wielding a baseball bat, as lawyers should be doing when discussing business) indicates he is going to file an MTD. He uses this term not once, but twice. Please, if you are lawyer, do not use this term unless you are better looking than Tom Cruise ( I am not—so I say motion to dismiss. I am better looking then John Merrick, the elephant man, so there are other things I can say).
So, as we have noted, whether or not the attorney files a motion to dismiss, we are going to get to the next stage of the game which is called Discovery and Motion Practice. I should not give the wrong impression. Many attorneys do not file such rudimentary motions as the previously mentioned (or as we say in the law ‘aforementioned’) motion to dismiss. Many want to get directly to the discovery stage where the real lucre can be made. Lucre is Latin for money which is where we get the word lucrative, which is how many lawyers treat their reasons for litigating which seems to me to be the reason why attorneys like to use Latin in the first place.
Discovery is exactly what it sounds like. It is to discover things about the other side’s case. Oh, you could break into your adversary’s office but many years ago they used guns to enforce discovery rules and many a law career was ended in the pursuit of justice. Therefore, it was necessary to construct the rules in a different fashion. In 1795, Thomas Jefferson, not the soon to be President, but the guy who really had the idea of forming the American Bar Association wrote to his fellow lawyers in the newly formed United States and told him that there should be rules “with respects to the causes pled.” All of his fellow lawyers answered him with a resounding affirmative, with the exception of soon to be President John Adams, who thought it was written by soon to be President Thomas Jefferson, a man whom Adams fully despised.
There are three different types of discovery: Oral, written and illegal. Despite the ancestral histories mentioned, supra (not a car but a lawyerly way of saying ‘above’) illegal discovery still occurs. However, illegal discovery does give rise to the best stories. Many years ago, in New York City, an investigator was asked to go photograph a hole that someone tripped over. The investigator took the pictures but was he himself photographed making the whole bigger. It might’ve gone unnoticed if it was not reported in the daily harbinger of all things legal, the New York Post.
Written discovery comes in what is known as interrogatories everywhere in the country, except New York, where it is referred to as a bill of particulars and in California where it is known as rolling papers. (As I write this, I am still contemplating a separate chapter for all things Californian) The purpose of interrogatories is to ask questions, to interrogate if you will, the opposing party on such matters as name, address, mother’s maiden name and then questions regarding the case. The questions are generally boilerplate. Sometimes, you will look at them and say I’m not giving them the answer to this question. How dare they ask that! Those bastards!” or something else in furious indignation (always in furious indignation—otherwise, what’s the point?) Sometimes the questions are redundant. Sometimes one question requires several questions to ask. Consider the following:
Q. When did you stop beating your wife?
This will generally come out in interrogatories as:
Q. Please indicate if you have beaten your wife?
Q. If the answer to the preceding question is in the negative, please indicate where
she got her bruises.
Q. Please indicate the time frame in which the spouse of the first part was beaten?
Q. Please indicate the manner in which the spouse of the first part was beaten?
Q. Please indicate what sporting events you were watching when the beatings took place
Q. Would you do it again?
Q. SO you said Yes, so you admit it, huh. As long as you admit, please give us full
particulars.
As you can see, the truly gifted attorney will create stepping stones for the building up of information in the case. Unfortunately for the entire process, interrogatories are written. No one is going to read interrogatories and jump up confess “I did it” by merely looking at words on a page. No, once again, the whole purpose of interrogatories is to give the attorneys more billable time. How does this occur? Let’s take a look at the following scenario.
Let’s assume we Are Dealing with a commercial dispute (not about TV ads, a business dispute) in which both attorneys are billing their time by the hour. Interrogatories are served upon the defendant. (billable item number 1) The defendant has a set amount of time to answer the interrogatories, usually thirty days. By day 60 there is no answer so the plaintiff’s attorney sends a letter to the defense attorney telling him the interrogatories are overdue (billable item number 2). Then he calls him up—“hey, Joe, it’s Sam, how are you, did you catch the Knicks game last night, when are we going to get together to play golf. How are the kids doing? Emily is going to NYU in the fall, hey that’s great. See any good movies lately. No shit. You liked it, huh? Great. Listen gotta go—get me those rogs on the Hungadunga case. No problem. Bye” (entire conversation billable item number 3). The defense attorney forgets to file the answers (he still bills for it so billable item number 4) so the plaintiff’s attorney now files a motion (what did I tell you?) to preclude the defense attorney from using any of the information that would have been contained in the interrogatories because of the failure to answer the interrogatories. (billable item number 5) The defense attorney ahs to answer this motion (billable item number 6) and they both dick around setting a date for the hearing before the judge (billable items number 7, 8 & 9) and then there is the hearing before the judge (sorry, supra is an incorrect usage here—and by the way that is billable item 10). Then there is the conversation with the client to let them know how the hearing went (items 10 & 11). Then the judge issues his decision and both parties read it (items 12 & 13) and then communicate with their clients again (items 14 & 15). And then because the judges usually give the non-responsive party one more time to prove they can play nice in the sandbox, the attorney then gets to prepare answers to the interrogatories (billable item 16) and the plaintiff’s attorney gets to read the answers (billable item 17).
I have used a simplified scenario to make a point.
I am not even taking into account the length of the answers to the interrogatories. That would, in certain books, require a chapter in and of itself. I have a friend in California (maybe I need a separate chapter) who will need to remain nameless who answers every interrogatory question along the following lines:
The question is objected to on the grounds that it asks for privileged information that is protected by the attorney client privilege as well as the work product doctrine and the priest penitent privilege and including but not limited to the fact that it is vexatious, argumentative, redundant, obnoxious, unholy, stinky, a case of poor sportsmanship and above all is so probative it might hurt my client’s own case. Notwithstanding all of these objections, the answer is NO.
Sometimes he will even write “I don’t know and interpose ( another lawyer word for ‘state’) even more objections. Again , all of this is done in the search for money.
But let’s face it, this type of stuff is just not sexy. I cannot remember a single episode of LA Law, Law and Order or Night Court in which the attorneys said “Boy, I spent all night working on the interrogatories in the OJ case and boy I am I tired but my answers were slipping and sliding.” It is just not the attractive practice of the law. In fact, on television, they do not practice law. They practice speechifiyin’. This is the art of making a speech in places in which speeches are not made. Of course on television, an entire case start to finish is wrapped up in 44 minutes so all there is time for is speeches.
The one exception to the “written discovery is not sexy rule is “Letters Rogatory”. This is sexy because most lawyers cannot remember it from first year civil procedure. It is a hardly used device and most attorneys would have trouble spelling it if they even remembered it. This is a procedure in which you can apply to a federal judge with written interrogatories for questions to be put to a witness in a foreign country. The questions are approved by the judge an d then they are sent to a judge in the foreign country who would then read them to the witness and transcribe the answers and then send them back home. I would assume the questions and answers are translated to avoid the answer to every question being “HUH?”
Oral discovery (I prefer the term verbal discovery since oral discovery sounds like the name of the first porn film Traci Lords starred in) is what you see on television. It is where, on television and in the movies, actors go for the Academy Awards or Emmys through speechifiyin’. But there is one important distinction. In real life, depositions are usually boring and last for days if not years. On television and in the movies, depositions last three and a half minutes and during 75% of that time the evil defense lawyer (I like to think of Jon Voight in the Rainmaker or James Mason in The Verdict) is objecting to the question and instructing the client not to answer the question, whereas in real-life the objection would take place for the record and the deponent (the guy answering the questions) would still have to answer. It is where the real action is.
Some typical questioning goes like this:
Q. During the autopsy, did you check his spleen?
A. No.
Q. Did you check
his liver?
A. No.
Q. Did you check his heart?
A. No
Q. Did you check
his blood pressure?
A. No.
Q. So he could have been alive, right?
A. No.
Q. Why is that?
A. Because his brain was sitting in a jar on the next table.
Q. Nevertheless, he could have still been alive?
A. Yes, without his brain he could still have been practicing law someplace, I guess.
Other examples of questioning:
Q. You have twin boys, Mrs. Peterson, correct?
A. Yes.
Q. What are their names?
A. Andrew and Peter.
Q. How old is Andrew?
A. Ten years old.
Q. And how old is Peter?
I would like to lie to you and tell you that nthese questions were made up so you can say “that guy, he really knows how to make us laugh to get the point across.” I’d like to tell you that but in good conscience I cannot. It is one of those maxims that while life imitates art, it does not do so with the law.
Most lawyers are not Atticus Finch or Daniel Caffee or even, dare I say, Perry Mason (although Perry deserves separate attention—not only did he get his client off the hook he got someone else to confess to the crime). They are not silver tongued orators who can with words move mountains. No, they are ordinary people who make mistake after mistake after mistake. Remember Johnny Cochran’s famous words “if the glove does not fit, you must acquit”? Well, Johnny was not that good. Johnny was lucky. One of the first things they teach you in law school is never ask a question to which you do not know the answer. Why? Because you do not get the answer you want. There is a similar rule with actions. Should the prosecution team have tried to use the glove before they let O.J. try it on. No, but they did.
Most lawyers who do that get fired.
Anyway, I digress. Depositions are the mainstay of civil litigation. Why? Because they take so long to complete and there are so many potential witnesses. And what does that mean—more billable time, that’s right class, you are catching on. In an auto case, it’s fairly easy so there are few problems. You have driver A, driver B, any passengers, and any witnesses. Sometimes, if the injuries are really bad, you will have some sort of medical testimony. You might also get the deposition of the husband or wife of the claimant is they have filed a claim for loss of consortium (also known as loss of services or loss of society and companionship). Since the cause of action ( a fancy phrase for claim) is really for lost sex opportunities, I prefer to refer to it as the loss of the right of private occupancy or interference with the easement for occasional access but, hey, let’s not get bogged down in legalese.
Some of these depositions can take a short time. Others can take a long time. But make no mistake about one thing. If you think you have listed everyone that could possibly tell what they know about the case, think again. Your lawyer will find at least six more people who can be deposed, each for two ten-hour days.
And the reason it takes so long to depose a witness (it takes even longer to depose the dictator of a third world country but no one opposes deposing a dictatorship) is because lawyers ask questions over and over again, leading to the creation of the phrase “objection. Asked and answered” followed with “you can answer” so why object in the first place—to preserve the record, dummy—haven’t you been paying attention? In a more complicated case, in a business dispute, let’s say, the situation multiplies many-fold. Besides the party witnesses, you have the lawyers, the accountant, the experts (and not just one expert, you have an accounting expert, a legal expert, a standard of care expert, a damages expert and so forth and so on) the plaintiff, the plaintiff’s son (Who has to testify how his 75 year old mother was defrauded in a financial deal so complicated he could not understand it with cue cards) and several others I can not think of but will come to me while I am doodling during a deposition. Let’s not forget all of the lawyers in a business dispute. Ten on each side, all billing a total effective rate of $4,263 per hour.
So you have finished everything that you need to try a case. You have all of your discovery out of the way, you have your theory of the case, you know exactly what questions to ask. You are going to trial, right?
Wrong.
Now it’s time to file another motion. This one is even fancier than the other one. This one is called a motion for summary judgment. This is the king of motions, the Wilt Chamberlain of motions (or the Michael Jordan of motions, depending on your age). This is the one that lawyers can only dream about. Why? Because it turns every case into a billable case. It sounds sexy to the uninitiated client, too. “Mr. Burns, I think that in order to knock the socks off of these guys we need to file a motion for summary judgment.” When the response is “Duh, huh?” the answer is “this motion will dispose of the entire case.” How can you not resist saying, “Duh, okay.”
According to the federal rules of civil procedure as well as the many state laws that authorize the filing of the motion, it should be granted by the judge when there is “no disputed issue of material fact.” So far so good. In an auto accident, if the defendant admits fault in his deposition, then the case would be ripe for a motion—although it would probably be settled when that happens—after the client got a severe drubbing from his lawyer. When both parties agree (rarely) or there is case law directly on point to support the position of one party over the other then the motion is perfect to make.
Our lawyer friends do not have the time or the luxury to look at cases so critically. Thousands of associates at any given large law firm in New York City are hunched over their desks (in offices shared with three others) pens ready in hand to start drafting the latest drivel that will pass for a motion. They will do this on every case. So that they can bill their time. Except for having to pay for the motion, it is quite amusing to watch a high powered law firm put together a three inch wide document costing $100,000 or more only to be defeated by some schlub plaintiff’s attorney in a polyester Sears suit who gets the motion defeated by dragging out one of his paid on-retainer experts and whose motion in opposition took him all of four hours to prepare. Of course you can take solace in hearing “damned judge wouldn’t know a precedent if it fell on him.”
Do not let your attorney tell you otherwise. Your chance of getting a motion for summary judgment granted are a lot more remote than you getting hit by lightning (especially if you stand on the roof of building during a lightning storm, as one young New Yorker did recently). Not much is needed to defeat a defense motion for summary judgment. If you are in Mississippi or Alabama the defense bar has even given up the filing of motions because all of the judges used to be plaintiff’s attorneys and are elected by their buddies so motions by the defense are never granted. The defense bar has taken this tremendous step despite the loss of revenue that motion practice allows; however, on a positive note, this shortfall has been made up by deposing more potential witnesses than in any other area in the country. Those that have not run wild in other areas in the process have gone back to work on their golf game which explains why these states have a large amount of low-handicapper lawyers.
One way your motion can be defeated is for the other side to provide an expert report that is diametrically opposed to what your expert report says. Bam!! There is a genuine issue of material fact. That’s it. It’s that simple, really. All they need to do is to point to some statement in the evidence shown up to that point in the case and if that fact proves up something different than what you are saying then your motion is denied. The situation is even more grim than that. There is what I like to refer to as the “two-inch” rule. If your lawyer files a motion more than two inches thick, in most cases the judge will not even read it. Haven’t you read the newspapers lately? Don’t you know that there is overcrowding in the courts, that judges can’t get to all of the cases they want to get to, that dockets are backing up worse than traffic on the Staten Island Expressway. Don’t you know this? What do the judges care about your attorney’s motion? Huh? If he or she is that good of a lawyer they can win the case at trial (which will only take one day to try, you’d better believe me, says the judge).
Don’t get me wrong. Sometimes the motion for summary judgment is granted. It is just limited to the situations in which the attorney for one of the parties is either a) a large contributor to the judge’s campaign or b) a college/ law school drinking buddy of the judge. Find out your attorney’s bona-fides first. If he fits into one of these categories, it is usually okay to file the motion. If not, forget about it.
Let us go for a hypothetical question, at this juncture. What happens if the motion for summary judgment is granted? Is the case over? What do you think?
Of course not.
Lawyers have built into the system a series of checks and balances to ensure that the case is not over until the last bit of life is wrung from it. This is why we have appeals. What is an appeal? It is a plea to the next highest court, called an appellate court (appeal. Appellate. Get it?) in which the losing party tells the court that the judge who decided the motion for summary judgment (or the motion to dismiss for that matter) is wrong, is a moron, should not be sitting on the bench (that’s where judges sit) and has otherwise damaged the reputation of the client by misapplying the law to the facts.
There are two different types of appellate courts on the state and federal level. There are the intermediate appellate courts usually referred to as the Court of Appeals in both the federal and state systems and the highest courts usually known as the Supreme Court—of the United States or of the particular state—the only exception to this is New York of course which has made the Supreme Court in New York the trial level court and the highest court is called the Court of Appeals; however, as we know the practice of law in the United States began in New York, so we are right and everyone else is wrong. At least, that is what we were taught at the Brooklyn Academy of Law—excuse me, I meant Brooklyn Law School.
To start things off, within a certain specified time frame, your attorney needs to file what is called a notice of appeal. This is not as grandiose as it seems on your bill. It is a one or two page document that is filed with the court and with the other party that says “that piece of shit decision was wrong and I am appealing the bastard” although not in such eloquent terms. Of course, this document that starts the appeals process cannot be filed until there is an order filed by the judge. A lot of judges who do not want to be reversed on appeal—because there are people who have nothing better to do than sit with a scorecard and track how judges are performing so that they can remove the judges from the bench and replace them with better judges who are in their pockets—will take a motion under advisement and not rule on it. That’s another reason not to waste your money on the MSJ—as we in the legal biz refer to it—but use the money more wisely, like taking the client to a World Series game in order to get more business from that client.
The notice of appeal is filed and then within a certain specified time usually thirty days the attorney for the appealing party (makes them seem nice doesn’t it) has to file the actual appellate brief. What is great about the appellate process is that without using the actual word you get to call the judge below a moron. All appeals derive from the fact that the judge below misapplied the law to your specific facts. If he is a judge and did this, he is a moron. But we cannot say this. We must say “the court below erred”. And the worst thing about the appeals process? You have to have a legal reason for the appeal. You cannot just say that the ruling went against your client so you are appealing. This does not work. No, you must point to some misapplication of the law as applied to the facts. This is a legal crapshoot. Obviously, you are looking at your case with reference to only your case. The judge may look at it that way as well; however, the judge may also look at it on the morning that his wife has told him that she wants a divorce because she knows all about his dalliances with his court stenographer and this clouds his judgment and he wants to take it out on someone and you are standing in front of him so you get both barrels of double-ought pellets in your heine.
The maxim is “bad cases make bad law”. It should also be included to say “bad judges make bad law.” For example, an insured under a policy of insurance settles a claim without the insurance company’s permission—not a good thing to do especially when the policy says that the insured cannot do this. Obviously, if an insurance company is going to pay money—and they do, despite what a lot of disgruntled people say—then they ought to have a say in the case, right. I mean, an insurance policy isn’t a flexible spending account, is it? Well, what happens when the judge has a bad day and rules against the insurance company? It proves up the maxim that “bad judges make bad law”. Well, this is a maxim that is shared by every person who has ever lost a decision on a motion. “That bastard knows nothing about the law. How the hell did he get elected to the bench?” This is the rally cry to the losing clients and is often replayed with great laughter by the attorney on the judge’s yacht the following weekend (for those people who do not live by water, the gusto would take place at the judge’s country club or barbeque pit or ranch or ski lodge or you name it).
Luckily, there are appeals courts and even I must admit that in most cases—notice I said most cases, not all cases, since lawyers are told not to talk in absolutes but rather they are taught to waffle—in most cases the judges on the appellate courts are much better than their trial level brethren. In many instances, the appellate court judges in states are appointed. In other states they are elected. In the great state o’ Alabama, even the judges of the Supreme Court of Alabama are elected. This may be outrageous you would say. How the hell could a judge in the highest court be elected. Shouldn‘t a judge in that position be appointed by the Governor of the state. Many years ago I would have agreed with you but imagine the hilarity that ensued when a few years ago the Chief Justice of the Supreme Court of Alabama lost the election and refused to vacate his office and a lawsuit had to be filed to get him out. All I could think of was a scene similar to Butch and Sundance holed up while the Bolivian army waited to take them to their inevitable doom.
Federal court judges by and large are the best. They go through the most rigorous screening process and are nominated for their positions and must be approved by the Senate. The great thing about being a federal judge is that you have lifetime tenure. No matter how much people do not like your decisions, you are golden. As long as you do not get into something that the New York Post would like to write about, you are okay.
Now that is a long roundabout way of getting into the appellate process. Once you file the notice of appeal, you have to file your brief. This tells you why the judge’s ruling on your motion below was incorrect. You generally have thirty days to file the brief. What makes this even more fun is that almost every sitting judge has their own rules as to how they like to see the format of the briefs. They must be double-spaced, on 8 ½ x 11 inch paper, they must be bound in just the right way, there must be X n umber of copies filed with the court, etc., etc., etc.
Before I forget, after you have filed your notice of appeal you are no longer a plaintiff or defendant. No, now you have been accorded the status of Appellant (notice the capital A). Your opponent is the very inferior sounding respondent (we will leave him with a small r) but remember one thing. That inferior sounding respondent WON the motion, so don ‘t get too cocky.
So once you, as the Appellant, have filed the brief the respondent (small r—unless you are the respondent then it is a capital R) must file a reply brief that basically says why the Appellant’s argument is crap. Depending on local court rules, once this brief is filed then the Appellant can file a sur-reply brief to say why the reply brief that said the appellant was full of shit is in reality full of shit itself. Hoo-rah.
Have I mentioned that the lawyer’s favorite Broadway show tune is “We’re In the Money.”
Lawyers are not paper alone, though. Keep that in mind. Lawyers must have the power of speech, else what fun would it be to see the TV lawyers on TV practicing law. Might be an interesting change of pace to watch Camryn Manhein typing a motion without saying a word—anything to get her to shut up. Please? No, in real life, lawyers cut not only with the written word but with the spoken word as well. Once your brief is done, you will set a date for a hearing on the appeal before the judge. This is the real practice of law because a lawyer cannot just blab on and on—because there are time limits. Ion an appellate hearing both sides are limited to about 15 minutes total time, usually because the appellate judges are older and in more need of sleep. Why I have even heard told that in the chambers of the Justices of the United States Supreme Court that they even have cots for the old geezers to sleep on midday so they do not fall asleep during hearings.
If you are an attorney you need to be fully versed in your case as well as being a good bullshitter. When in the course of human events, an appeals court judge does not like your argument he (usually she) will start asking questions that appear so far off the track that they seem to have no relevance but they do if one can see the slippery slope that they are trying to get you to (just as my wife does to me over the breakfast table on Saturday and Sunday mornings and every weeknight while I am trying to watch television, right guys?) If you do not have the gift then you might be tempted to tell these judges to drop dead, but that could hurt your client’s case. No, spend your 15 minutes in hell as politely as possible and then retire to the bar down the block for a nice stiff one.
Okay so you’ve lost your appeal, now what (actually, my wife has told me that I have lost my appeal after all these years but I think she means something entirely different—I will have to check)
If you will recall, the appeal we presented earlier was an appeal from a decision on a motion for summary judgment (say that phrase again and again and you will feel the power emanating from those words). If the case is sent back to “the court below” (great language, huh—the appeals courts often feel that they sit on the top of Mount Olympus and anything beneath them is well, uh, beneath them). Anyway, you are back in front of the plaintiff’s attorney’s golf buddy (I am of course referring to the judge) and you need to do whatever you can to avoid trial so you decide to go to mediation—a device that will be covered in a later chapter—which is more easily understood as a settlement conference. Usually, there is a retired judge involved who gets paid, of course, to listen to both sides of the dispute and try to b ring both parties together numerically. Sometimes that can happen, sometimes it cannot. These retired judges who all have silver hair and look like the typical television and movie grandfather start out nice and sweet but as the day draws on they become the embodiment of Lucifer, spewing language that would make all but my eighteen year old son blush (what can I say? Okay, my fourteen year old as well.) Mediation is one of those fun processes, like watching wheat grow. First, the sides become polarized because each side spews forth their particular version of the facts and the law and then the sides are separated never to be seen again so that the mediator becomes Henry Kissinger doing his little shuttle diplomacy back and forth.
These retired judges get paid a flat fee usually for the day or the half day so it is in their best interests to get the case settled as quickly as possible so they can go play golf (in fact, I think that out on the links by noon is a measuring stick of success for these mediators). In fact the more successful mediation services is called JAMS (judicial arbitration & mediation services) but I think they got their name because they are successful in jamming settlements down the throats of parties. Of course, if a retired judge has a mistress on the side, usually he will book a mediation at a half day and then charge $300 per hour for the overage and drag the proceedings out as long as possible. Hey, it’s America. You would do the same, given half a chance.
Your case does not settle. You are going to trial. If you are a defense attorney, this is another opportunity to bill the shit out of the file (plaintiff’s attorneys—usually on a contingency fee (see chapter on rape and pillage) have to win at least). The defense attorney’s job is to drag the proceedings out as long as possible and to have as many other attorneys at the table with him to assist ion handing him papers. Something to point out at this juncture. When you see a defense table with several lawyers on it, usually the two or three closest to the center aisle are the ones doing the work. The other ones are there to learn on your dime so that they can soon grow up and bill the shit out of files. You will generally not know who these pretty people are and they will never talk to you until they are introduced and only then will say nothing until directly addressed but you can talk to them and ask them questions like “I should have filed for financial aid if I was going to pay for your education, shouldn’t I?” They will have no answer to this. Rest assured, though, that after eight hours in trial doodling I mean learning they will go back the office to fully research everything that the trial attorney will need to know, such as the address for that cute blonde on the jury.
We will go through trials and trial tactics in greater detail in the chapter entitled “Attila The Hun had the Right idea” but in terms of basic premise, most movies and TV shows have the procedure down right. Ok, you cannot wear a leather jacket like Cher did in Suspect but why be like Cher at all. In addition, unlike Kevin Costner in JFK or Denzel Washington in Ricochet an attorney cannot speechify during questioning. I will not even address the movie “Legally Blonde” which, although funny, shows no representation to real life.
There is two of everything in a trial with the exception of one thing: a winner. There can only be one winner. But that, too, has its exceptions. In terms of procedure, there is an opening statement by both sides. Then the plaintiff—or the prosecution in a criminal case—gets to put on its proof or evidence to you laymen. This is done by the use of witnesses. Witnesses come in two sizes—fact witnesses and expert witnesses. Fact witnesses are supposed to testify to the truth of what they perceived or were involved with that were core to the dispute ion the case at bar (more legal jargon). Expert witnesses testify as to whatever you want them to say since this is another hidden fee in the lawyer’s toolbox. As you can probably tell, I think lawyers are pretty low on the food chain. Experts are even lower. Lawyers will at least try to give you an opinion on the merits of your case—even if it is after they have spent a gajillion dollars in fees—but they will give you an opinion. Experts in the legal business are only on this earth for one purpose. To Get Paid. There are even some lawyers who still believe the law is a noble purpose and they take cases for free or they are salaried employees of the, let’s say for example, ACLU or Legal Aid Society. At least those people have the betterment of society in mind. Experts only want to get paid for their opinions. Why? Because they all seem to have at least 18 degrees an d certifications far beyond that of their undergraduate degree in physical education. There are all types of experts. I could not even begin to list the experts that are involved in the legal business. From engineers to doctors (another sub-species of life, but that is a different book)) to investigators to other lawyers—yes, even lawyers can be experts. Some of the best richest lawyers I have met have never stepped foot in a courtroom. How the hell do they do it? Connections. Lawyers play golf. The better thew lawyer’s golf game is, the worse they are at real world law. That’s why all of the top partners at white shoe firms in the heart of New York City are great golfers. They handle these complicated securities cases, right? They go into court to argue motions that their esteemed associates draft and that is the extent of their true practice of law. When these same guys have to go into court to represent someone on a fender bender case they have no idea what section 388 of the VAT law means (vineyards and t____? Pray tell, Muffy dear)the
Okay. My medicine is working again. Whew. That was close. Now after the plaintiff questions their witnesses then the defense gets a chance to question the witnesses to bring out inconsistencies. This is known as cross-examination, something that has happened to us all. Whether we are in a court of law testifying under an oath to god that we will be stricken down like dirty dogs if we ever tell a lie (that is the actual oath you take in Fiji) or we are ten years old and have told a lie to our mothers and they start dissecting it bit by bit or we are forty something years old, came home a bit too late, a bit schnockered and heaven forbid with some lipstick on the face and then we told a lie to our wife and they start dissecting it bit by bit, whether it has been any of these situations we have been cross-examined. (my wife was always the best at this. Sorry, mom.)
Cross examination will be dealt with in more detail in the chapter called “Mom never prepared me for this type of questioning” but I would like to put it in perspective now. Cross examination is THE reason that people give up their souls to become lawyers. N o one ver says “Well, I really enjoyed drafting those corporate merger documents.” No, anyone who wants to be a lawyer wants to be one because they have seen some actor in some movie tear someone in that same movie, sitting down in a witness chair, to shreds. Do not believe anyone when they say they became a lawyer to help people. BULLSHIT> No one becomes a lawyer to help people. It is too damn expensive. Even the Brooklyn Academy College of Law costs a humongous chunk of change and they don’t even have a good name. No. everyone who wants to be a lawyer dreams of the opportunity to verbally rip someone a new bodily orifice. Unfortunately, only five percent of the lawyers in this country are truly qualified to go at cross-examination effectively and with gusto. The other 95 percent of the lawyers have cross examinations that go like this:
Q. Were you wearing your glasses at the time
A. No.
Q. Ah ha (finger pointing, either to the sky or at the witness—usually at the sky in a eureka, I found it pose) And how come you weren’t wearing your glasses?
A. I don’t wear glasses.
This is called asking a question that you do not know the answer to. This is one of the first things that they teach a law student and you would be surprised how many lawyers do not take it to heart. If this happens at trial, you might as well fold up your tent and go home if you are the plaintiff or open your wallet if you are the defendant. If you are a criminal defendant and the death penalty awaits you, Oops.
You might ask “how the hell am I supposed to know the answer to a question that I haven't even asked?”
You need to investigate the answers first. Hire an investigator to find out if Mr. Jones, supra, wore glasses. Not that everything is this easy to find out but the more effective scenario would be:
Q. Mr. Smith, did you give Ms. Smith notice of her deficiencies
A. Yes.
Q. Where
A. In her performance appraisal.
Q. Ah ha (finger pointing, either to the sky or at the witness—usually at the sky in a eureka, I found it pose while simultaneously whipping out a document) I show you this exhibit marked plaintiff’s exhibit number 7,843. Do you see page four where it says Ms. Smith is a top notch employee?
A. Uh. Uh. Uh. Uh.
Which gives you the opportunity to end the cross-examination with “were you lying then or are you lying now?”
Something sarcastic like this will give rise to an objection. My favorite objection has been “it’s extremely damaging to my case” but you can only use that one in the movies. What’s great about objections is that the judge gets to motion the two lawyers up to the bench and they have what is n =known as a sidebar. I do not have to give a definition of sidebar since most people tuned into the sidebar follies, excuse me, I meant the O.J. trial in which Lance Ito would call up Johnny Cochran and Marcia Clark and say “where are we having for lunch today”.
Objections are used not only to keep evidence out but to break up the rhythm. If a witness testifies that they say John Doe shoot Jane Doe and this testimony gets excluded by what lay people call a technicality—which is a nice way of saying fucking legal bullshit—do you think anyone is going to forget what was said? Of course not. But if you object after every question you cc san break up someone’s train of thought. Unless you are like me when my wife comes into the room during must-see TV and starts asking me questions and the uh-huhs go flying quicker than the question. By way of example, remember the movie The Verdict. In that movie, a witness blows the entire defense case apart with a secreted copy of a document. She screams, she yells, she wanted to be a nurse and because of these bad men she could not be a nurse. The prince of darkness James Mason says how can she prove that the doctors are lying and she whips out the original showing that the patient ate only on e hour before administration of anesthesia instead of the nine hours that the doctors claimed. (Notice that James Mason’s face suitably falls because he, what class? That’s right—he asked a question that he did not know the answer to. The point of this whole dissertation is that even when the Judge, on the defense motion, throws out the entire testimony of the witness you know that thy jury is not going to do so. So be careful out there.
After all the evidence gets put on both parties get to put on a closing statement. This is where the television and movie actors have a leg up on their real life counterparts. In fiction the closing statements last no longer than five minutes. In real life (because lawyers are paid by the hour) the closing statements go on for hours, sometimes days. These lawyers go ahead and recite every bit of evidence that you have already heard, putting their own particular spin on it (I have referred to Mr. Cochran’s closing argument in the OJ case earlier) If you are a juror on a criminal case, expect to hear from the defense the argument that the prosecution has not met its burden of proving its case beyond a reasonable doubt. That is the standard in criminal cases. I sort of figure that the guy, if it has gotten all the way to trial, must be guilty of something so I’d vote to convict (that should keep me out of jury duty forever. On the civil side, I can say no plaintiff’s verdicts for me—my premiums are too high)
In a civil case, the standard is much less. Since we are dealing with dollars, we need not be so concerned about trampling on the rights of defendants—a regular downtrodden lot. That’s why OJ (I know I keep referring to it but they didn’t call it the Trial Of The Century for nothing) could walk on the criminal charges and get whacked for $33,000,000 on the civil case for the same acts.
copyright 2008, Michael Fried
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